Good afternoon walden2-ga!
Let me start by saying that I am not a lawyer and cannot give you any
legal advise; however, I can give you some information regarding
"Franks Motion.?
First, the correct terminology for what you are referring to is Franks
Hearing. Franks Hearings deal with search warrants and suppressing
evidence for use at trial. In order to quash an arrest warrant you
need to have a probable cause hearing.
The Fourth Amendment has two clauses. The first states that people
have a right to be protected from unreasonable searches and seizures,
and the second states that no warrant shall issue except upon probable
cause.
A probable cause hearing is the preliminary hearing that typically
takes place after arraignment and before a serious crime goes to
trial. The judge is presented with the basis of the prosecution's
case and the defendant is afforded full right of cross-examination and
the right to be represented by legal counsel. If the prosecution
cannot make out a case of probable cause, the court must dismiss the
case against the accused.
Source: The FreeDictionary.com
( http://encyclopedia.thefreedictionary.com/Probable%20cause )
=========================================
A Franks Hearing is a hearing to determine whether a police officer's
affidavit used to obtain a search warrant that yields incriminating
evidence was based on false statements by the police officer.
Source: Black's Law Dictionary, Second Pocket Edition, Bryan A
Garner, Editor in Chief
HISTORY:
Franks v. Delaware, No. 77-5176 was argued on February 27, 1978 in the
Supreme Court of the United States. Prior to the petitioner's
Delaware state trial on rape and related charges and in connection
with his motion to suppress on Fourth Amendment grounds items of
clothing and a knife found in a search of his apartment, he challenged
the truthfulness of certain factual statements made in the police
affidavit supporting the warrant to search the apartment, and sought
to call witnesses to prove the misstatements. The trial court
sustained the State's objection to such proposed testimony and denied
the motion to suppress, and the clothing and knife were admitted as
evidence at the ensuing trial, at which petitioner was convicted. The
Delaware Supreme Court affirmed, holding that a defendant under no
circumstances may challenge the veracity of a sworn statement used by
police to procure a search warrant.
Held: Where the defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment, as incorporated in
the Fourteenth Amendment, requires that a hearing be held at the
defendant's request. The trial court here therefore erred in refusing
to examine the adequacy of petitioner's proffer of misrepresentation
in the warrant affidavit. (Pp. 155-156; 164-172.)
Source: Frank v. Delaware
( http://w3.uchastings.edu/bisharat_01/CrimPro%20Cases/438_U_S_154.htm )
Franks v. Delaware showed that upon a sufficient prima facie showing
[evident without proof or reasoning], in conjunction with a motion to
suppress evidence, a defendant is entitled to a hearing at which to
present evidence controverting the information provided in the warrant
affidavit.
Source: Appellate Defenders
( http://www.adi-sandiego.com/Resources/Lingo.htm )
=========================================
A Franks hearing is simply an evidentiary hearing on a motion to
suppress evidence based on a challenge to the facts included or
omitted from a search warrant.
Source: No. 88,828, In The Court Of Appeals Of The State Of Kansas -
State Of Kansas, Appellant, V. Nathan R. Hendricks, Appellee.
( http://www.kscourts.org/kscases/ctapp/2003/20030117/88828.htm )
=========================================
United States v. Per-domo, 800 F.2d 916, 920 (9th Cir. 1986) states
that "under Franks . . . the authenticity of only the Affiant must be
challenged"
United States v. Kiser, 716 F.2d 1268, 1271 (9thCir. 1983) states "The
offer of proof [for a Franks hearing] must challenge the authenticity
of the Affiant, not that of his informant."
Source: United States Court of Appeals for the 9th Circuit
( http://64.233.167.104/search?q=cache:RW_pBqxJJ1kJ:www.ca9.uscourts.gov/ca9/newopinions.nsf/EFDEA41A5D9E767988256F09007243A9/%24file/0350300.pdf%3Fopenelement+what+is+Franks+Motion+&hl=en&start=18
)
=========================================
A Franks hearing is premature when there is no indictment or criminal
case pending against the movant (one who makes a motion to the Court)
Source: United States Court of Appeals for the 5th Circuit
( http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=9920522cv0
)
=========================================
As far as police interviews go, I am unsure as to why a police office
would deny the defendant or his attorney to be interviewed. I believe
if a Defendant is willing to give a recorded/videotaped statement to
the police that the police would be more than willing to accommodate
this request, as it is standard practice for any person arrested to be
questioned once in police custody. Many times, a person can even be
questioned before an arrest.
Based upon the information you have provided and the information I
have given you, it is my opinion that in order to quash the arrest
warrant, you cannot use a Franks hearing; however, you can file a
Motion to Show Cause.
As I have stated before, I am not a lawyer and I cannot give you legal
advice so if you are in a situation where you need legal
representation, please seek the help of a professional lawyer.
I hope this information is helpful to you and should this answer
require a further explanation, please request clarification before
rating it, and I will be happy to look into this further.
Nenna-GA
Google Answers Researcher |
Clarification of Answer by
nenna-ga
on
21 Sep 2004 11:03 PDT
Hello again walden2-ga,
Let me try and clarify some things for you in my original answer.
As stated in the first part to my answer, a Franks Hearing (Franks
Motion) pertains only to a SEARCH warrant and not to an arrest
warrant.
A "Franks Hearing" is a hearing to determine whether a police
officer's affidavit used to obtain a search warrant that yields
incriminating evidence was based on false statements by the police
officer.
Source: Black's Law Dictionary, Second Pocket Edition, Bryan A Garner,
Editor in Chief
=========================
EVEN IF a Franks Hearing could be used on an arrest warrant:
You stated "his entire affidavit is based on the word of the complainant..."
By 'his', I am assuming you mean the police office and complainant
being the Plaintiff in the case. It seems to me, by this statement
alone, that you are indicating that the Plaintiff is the one giving
the false information and that the police officer merely transcribed
into the affidavit what he was told by the Plaintiff.
"Franks allows recourse only when the misrepresentation is that of a
government agent."
Source: Erowid Freedom Vaults
( http://www.erowid.org/freedom/police/ )
=========================
Additionally, you stated: "It would seem that since the affidavit
which established P.C. for the arrest was a result of "reckless
disregard" by the officer...."
Reckless disregard is defined as "behavior or demeanor which evidences
a lack of concern for consequences"
Source: Legal Glossary
(http://glossary.reference-guides.com/Legal/Reckless_Disregard/ )
As noted in United States v. Martin, 615 F.2d 318, 329 (5th Cir.
1980): [I]t will often be difficult for an accused to prove that an
omission was made intentionally or with reckless disregard rather than
negligently unless he has somehow gained independent evidence that the
affiant had acted from bad motive or recklessly in conducting his
investigation and making the affidavit. Nevertheless, it follows from
Franks that the accused bears the burden of showing by a preponderance
of the evidence that the omission was more than a negligent act.
Source: Erowid Freedom Vaults
( http://www.erowid.org/freedom/police/ )
=========================
It is again my opinion that a Franks Hearing cannot be used to throw
out the arrest warrant because (1) it can only be used to suppress
evidence or present evidence controverting the information provided in
the search warrant affidavit and (2) because the Plaintiff, who was
the one giving the information (false or otherwise) is not a
government agent.
I hope this clears things up for you. I am also strongly going to
reccomend in your situation, you find yourself a lawyer as soon as
possible to help you with your SPECIFIC case. While I can quote and
explain the law, I am not a lawyer, and "Answers and comments provided
on Google Answers are general information, and are not intended to
substitute for informed professional legal advice"
This gives you at least an idea that the Franks Hearing does not
pertain to your type of warrant as you mentioned in your question.
Nenna-GA
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